| OCR Text |
Show THE RIPARIAN RIGHT 75 definitions, it is difficult to reconcile the doctrine of riparian rights-which rights come into being by reason of contiguity of land to definite natural bodies of water with reasonably defined boundaries-with these normally "vagrant" diffused surface waters. Many controversies have been decided by the high courts respecting the handling of diffused surface waters by drainage and obstruction of their flow-their riddance and avoidance-but few cases have dealt with their capture for the purpose of putting them to beneficial use. The most positive declaration of the nonapplicability of riparian rights to such waters that has come to the attention of the author is in a South Dakota decision. The court said:380 No riparian rights attach to surface waters, nor does the arid region theory of appropriation apply thereto. There is no right on the part of a lower proprietor to have surface water flow to his land from upper property. A landowner is entitled to use surface water as he pleases so long (and so long only) as it continues in fact to come upon his premises. He may drain or divert the same or he may capture, impound, and use it in such fashion as he will, provided only that he does not thereby create a nuisance or unlawfully dam back or cast the waters upon the land of another. In California, there seems to be little direct authority for the proposition that riparian rights cannot attach to diffused surface waters-perhaps because it appears so obvious. Direct support seems to rest chiefly on the holding in Lux v. Haggin, that if plaintiffs I were owners only of swamplands through which there was no watercourse, they could not have a cause of action for invasion of riparian rights because they would then not be riparian proprietors.381 Indirect support may be derived from decisions defining and acknowledging the existence under specific circumstances of watercourses to which riparian rights attach, as against contentions to the contrary, thus at least by implication excluding from attachment of riparian rights waters existing under circum- stances that fail to meet the requirements of a watercourse.382 The Texas Supreme Court held, at least by necessary implication, that riparian rights do not attach to diffused surface waters, even while concen- trated in channels (as such waters necessarily will be at some times and places) so long as they do not assume the characteristics of watercourses. What the court actually held, as against the major contention of defendants that the waters of Barilla Creek were mere diffused surface waters to which water rights do not attach, was that "Barilla Creek under the undisputed evidence and **°Terry v.Heppner, 59 S. Dak. 317, 318-319, 239 N.W. 759 (1931). MiLux v. Haggin, 69 Cal. 255, 413,4 Pac. 919 (1884), 10 Pac. 674 (1886). 382 For example, runoff from the usual and annually recurring fall of rain and snow, running in a defined stream, constitutes a watercourse to which the riparian pro- prietors' rights attach. Undblom v. Round Valley Water Co., 178 Cal. 450, 453,173 Pac. 994 (1918). |
